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The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames.

As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen's use of "flattery" and his appeals to the "vanity" of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen's personal email accounts that the feds had sought.

The government's theory of the case was that the wording of Rosen's questions to Kim facilitated Kim's release of classified materials, and Rosen therefore bore some of the criminal liability for Kim's answers to Rosen's questions. Kim has since been indicted for the release of classified information (presumably to Rosen), a charge that he vigorously denies. Rosen has not been charged, and the DOJ has said it does not intend to do so.

The government knew that Rosen committed no crime — not as a conspirator nor as an aider and abettor — by asking Kim for his opinion on the likely North Korean response to the then-pending U.N. condemnations of North Korea's nuclear and ballistic missile tests. By telling a federal judge, however, that Rosen somehow was criminally complicit in the release of classified information by the manner in which he put questions to Kim, the DOJ substantially misled the judge into signing a search warrant, which, when executed, would enable the feds to read Rosen's private emails. Then, by reading them the feds were led to Fox News telephone numbers in New York City and in Washington, which they since have acknowledged they have monitored.

When asked at a congressional hearing just two weeks ago on May 15 to address this, Attorney General Eric Holder replied: "With regard to the potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of or would think would be a wise policy."

Whether under oath or not, because Holder spoke in his official capacity before a congressional committee in its official capacity, he was legally bound to tell the truth and legally bound not to mislead the committee. Last Thursday, President Obama in a speech on national security stated, "Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law." The next day, the DOJ leaked to NBC News the inconvenient truth that Holder had personally authorized seeking the search warrant for Rosen's personal emails; and over the long holiday weekend, the DOJ confirmed that.

What's going on here? Isn't the Attorney General bound by the same laws to tell the truth as the rest of us are? Doesn't the First Amendment protect from criminal prosecution and government harassment those who ask questions in pursuit of the truth?

The answers to these questions are obvious and well grounded. One of Holder's predecessors, Nixon administration Attorney General John Mitchell, went to federal prison after he was convicted of lying to Congress. The same Attorney General who told Congress he had "not been involved" in the Rosen search warrant before the DOJ he runs revealed that he not only was involved, he personally approved the decision to seek the search warrant, must know that the Supreme Court ruled that reporters have an absolute right to ask any questions they want of any source they can find. The same case held that they cannot be punished or harassed because the government doesn't like the answers given to their questions. And the same case held that the if answers concern a matter in which the public is likely to have a material interest, they can legally be published, even if they contain state secrets.

The whole purpose of the First Amendment is to permit open, wide, robust, even unfettered debate about the government. That debate cannot he held in an environment in which reporters can be surveilled by the government because of their flattery. And the government cannot serve the people it was elected to serve when its high-ranking officials can lie to or mislead the congressional committees before which they have given testimony.

The great baseball pitcher Roger Clemens spent a few million dollars successfully defending himself against charges brought by Holder's DOJ, which accused him of doing what Holder himself has arguably done. Is this the government in a free society? Is this what you expect from the government in a free society? And when reporters clam up because they don't like the feds breathing down their necks when they reveal inconvenient — or even innocuous — truths about the government, don't we all suffer in our ignorance?

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.

Previously:

•05/23/12 Tyranny Around the Corner
•05/17/12 Storm Clouds Gathering
•05/09/12 Why We Should Mistrust the Government
•05/02/12 More Holes in the Fourth Amendment
•04/25/12 Boston and Freedom
•04/18/12 Taxation Is Theft
•04/11/12 Drones, Guns and the President
•04/04/12 When the Government Goes Bankrupt
•03/28/12 Hope for the Dead
•03/21/12 No More Asking for Permission To Speak
•03/14/12 What if Nanny Is a Thug?
•02/28/12 Obama's False Alarms
•02/14/12 Obama's Secret Court for Killing
•02/07/12 Obama Gives Himself Permission To Kill
•01/31/12 Both sides in immigration debate overlook main issue
•01/24/12 Guns and the President
•01/17/12 Guns and the Government
•01/10/12 Guns and Freedom
•12/13/12 Government Spying Out of Control
•12/06/12 Republicans for Big Government
•11/29/12 Republicans and Taxes
•11/15/12 Silencing General Petraeus
•11/08/12 Four more years to crush personal freedoms
•10/25/12 Silence on Libya
•10/18/12 Who Is Responsible for the Mess in Libya?
•10/11/12 Let Gary Johnson Debate
•10/04/12 Two Failures
•09/27/12 The Arab Spring Becomes a Western Winter
•08/23/12 Abortion and Rape
•08/16/12 November's Choices
•08/09/12 Gazillions
•07/19/12 The Rule of Law
•07/12/12 We Are at a Turning Point
•07/03/12 A Vast New Federal Power
•06/28/12 Restraining Arizona, Unleashing the President
•06/21/12 Can the President Rewrite Federal Law?
•06/15/12 Squealing Versus Killing
•06/07/12 Where Is The Outrage?
•05/31/12 The Secret Kill List
•05/24/12 What If We Have Only Memories of Freedom?
•05/17/12 Is There a Drone in Your Backyard?
•05/10/12 What Constitutes a Fair Trial?
•05/03/12 The President's Private War
•04/26/12 Rick Perry Was Correct
•04/19/12 A Government of Waste
•04/12/12 What If the Government Rejects the Constitution?
•03/29/12 Can the Government Force You To Eat Broccoli?
•03/22/12 Is the CIA in Your Kitchen?
•03/15/12 Can the Secret Service Tell You To Shut Up?
•03/08/12 Can the President Kill You?
•02/23/12 What If Democracy Is Bunk?
•02/16/12 Time To Tame the Federal Beast
•02/09/12 Do Catholics Have Too Many Babies?
•02/02/12 What Is a Just War?
•01/25/12 A Few Words About Abortion
•01/20/12 How Much Economic Freedom Do We Have in the United States?
•01/12/12 What If Elections Don't Matter?
•01/05/12 Big Government Cannot Pay Its Bills, Again
•12/29/11 The Case for Austerity
•12/22/11 New Ideas or Fidelity to Old Principles?
•12/15/11 The Government as Lawbreaker, Again
•12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
•12/01/11 Can Congress Steal Your Constitutional Freedoms?
•11/24/11 What if the Constitution No Longer Applied?
•11/17/11 Congress and Secrecy
•11/10/11 Does the Government Work for Us, or Do We Work for the Government?
•11/03/11 Look at What the Government Has Done with Your Money
•10/27/11 What Have the Wars Done for You?
•10/20/11 Is Freedom in America a Myth or a Reality?